Women and Equalities Committee 

Oral evidence: Menopause and the workplace, HC 602

Wednesday 19 January 2022

Ordered by the House of Commons to be published on 19 January 2022.

Watch the meeting

Members present: Rt Hon Caroline Nokes (Chair); Philip Davies; Dame Caroline Dinenage; Anum Qaisar; Bell Ribeiro-Addy and Jackie Doyle-Price

Questions 49 - 83

Witnesses

I: Marian Bloodworth, Chair, Employment Lawyers’ Association and Partner in Employment Law, Deloitte Legal; Colin Davidson, Co-chair of the Discrimination Law Association and Head of Employment Law, Edwards Duthie Shamash, and Adam Pavey, Director of Employment and HR, Pannone Corporate.

Written evidence from witnesses:

Examination of witnesses

Witnesses: Marian Bloodworth, Colin Davidson and Adam Pavey.

Q49              Chair: Good afternoon, and welcome to this afternoon's meeting of the Women and Equalities Select Committee and our ongoing inquiry into menopause in the workplace. This afternoon is the third evidence session. Can I thank our three witnesses for being present, either virtually or physically? We have Marian Bloodworth from the Employment Lawyers’ Association; Colin Davidson, co-chair of the Discrimination Law Association; and Adam Pavey, who is the director of employment and HR at Pannone Corporate.

Thank you very much for coming along. Members of the Committee will ask you questions in turn, but if at any point you would like to come in on a question that has not been directed at you, please do feel free to raise your hand and I will try and bring you in at the appropriate moment.

Could I start off with a question to Marian, please? How well do you think employers understand the responsibilities they have under health and safety legislation towards employees who may be going through the menopause?

Marian Bloodworth: Thank you, and good afternoon. It is a very good question. I would say that generally employers are reasonably aware of their obligations and—if it helps to set it out—they have two sets. There is an obligation at common law, which is a duty of care to provide a safe place of work for all of their employees so that they do not expose them to unnecessary physical and mental health risk. Then, they have statutory obligations. There is the Health and Safety at Work Act and then there are two sets of regulations which impose particular duties on them. None of those statutory obligations that I have referred to expressly puts an obligation on them regarding menopause.

Whilst they do generally provide safe places of work, I think employers are not necessarily alive to some of the health and safety issues that the menopause can present. At one point, obviously, Government took note of that. There are express provisions that put obligations on them when they have pregnant employees and women who are breastfeeding or of childbearing age. There is an express obligation to do risk assessments in that situation, but there is not a comparable one when you have women or people who may be experiencing the menopause in the workplace. My assessment would be that they are not entirely alive to the possibility that they may need to do specific risk assessments.

Q50               Chair: Do you think it would make a difference if there was that specific obligation around the menopause—in the same way that there is for maternity—if employers were required to do a risk assessment?

Marian Bloodworth: It is a balancing act, because employers can sometimes not want additional burdens put on them, but at the same time employers always welcome clarity. If there are obligations that the law and society expect them to meet, it is helpful for those to be set out. As soon as you have a statutory obligation you typically have some guidance and some examples of the kind of things that they can do. I think that would be helpful.

Q51              Chair: You referenced employers not necessarily being alive to the responsibilities that they have. Have you observed any difference between large and small employers? Is there a difference?

Marian Bloodworth: As with all things it is often a question of resource of small employers. In particular, SMEs genuinely do not have the luxury of dedicated teams that focus simply on one issue. Sometimes you will have people who wear a number of hats. The bigger you are perhaps the more likely you are to have networks or employee bodies who raise these issues and bring them to your attention and then you can take it away and work out what steps you need to take, so I do think size can play a part in it.

Q52               Chair: Having focused on employers, can I flip it and talk about employees please, Marian, and whether employees tend to be aware of the existing rights that they have and the responsibilities their employers have to take care of them in the workplace? If not, what more could be done to make employees aware?

Marian Bloodworth: That is a very good question. I wonder if employees are not always aware of their employer's obligations because, typically, if there is a breach of a health and safety obligation it is not necessarily something that an employee can action by themselves. It is more usually done by the Health and Safety Executive or a local authority and things like that.

If employees experience stress at work they might go and take some advice and realise that that is a claim that they could bring. Otherwise, I think people would be reduced to raising internal complaints, so a grievance or complaint. There are some protections under the Employment Rights Act 1996. If you as an employee raise a serious issue around health and safety and you are penalised for doing that—or even worse, you are dismissed—you do have some rights there. You might be able to argue if you are exposed to a lot of risk, for example, that your employer has effectively constructively breached your contract and constructively dismissed you; then you would have a claim that you could bring there. Of course, any claim that results in you leaving employment is not a great one in any event, so I do not know how employees would be properly equipped to raise issues around health and safety risks unless they were very obvious.

Q53              Chair: Are you aware of any cases the HSE has brought around the menopause?

Marian Bloodworth: No. You may know that within ELA we put together a working party to respond to this call for evidence and it is not aware of any enforcement actions. I suppose, typically, those kinds of things are not necessarily public. It is not something employers are proud of. I do know that quite often where there are alleged breaches, it starts with a discussion by the necessary authority to see whether the situation can be improved, and so it is the last resort when enforcement actions are brought.

Q54               Chair: Thank you. Can I turn to Adam, please? Then I am going to give the same question to Colin. Can you give us an indication what the challenges are when you are advising an employee as to how a tribunal will approach their claim?

Adam Pavey: The initial challenge is looking at what pathway the discrimination takes. I remember a number of years ago advising a client about the menopause and potential discrimination issues at work. It was the first time that I had encountered it and I was looking at the books and trying to find a way to plead the case. You start off thinking, well, maybe it is sex discrimination, potentially age discrimination as well. Finally, most lawyers end up looking at it from the point of view of disability discrimination.

The reason why that is the case is because using disability discrimination is a means of being able to argue the case in a more effective way, in particular because it allows you to argue a failure to make reasonable adjustments. Failures to make reasonable adjustments are often at the heart of these types of claims and issues that are faced in the workplace.

An example might be something like an employee working in an organisation that may start to have difficulties with performance, or their employer believes that they have difficulties with their performance and their capability. Some of that may come about, quite understandably, from some of the issues that come from the adverse effects of the menopause; things like brain fog or just being frequently quite tired can cause issues. In those circumstances you are looking at reasonable adjustments because you want to be able to bring an argument that the employer should have really changed things—so effectively made adjustments to the way that they operate and the performance management procedure for example—in order to make some allowances for the fact that the individual is suffering from difficulties from the menopause. Without arguing the case and without pleading it as a disability discrimination case you are not able to do that.

As far as the challenges go, there is an inherent issue there which is describing the menopause, which is a natural process, as being a disability. It is not because there is a stigma connected with the word disability. It just seems to me, and to lots of people that I speak to and prospective clients, to be just not the right terminology to use, and in actual fact it is being used for convenience rather than design simply so that you can bring those cases.

I am struggling to find other aspects of the law in which that happens where you are calling something that it is not just for the purposes of being able to plead a case. It just seems like the wrong word to use with what we are talking about when we talk about disabilities. The definition in section 6 of the Equality Act is “mental or physical impairment”, and I think it is the use of the word “impairment” that causes some difficulties. We do not talk about age in the sense of being an “impairment”. We talk about that as being a natural process of life. I think using that word creates a barrier potentially to some individuals who may wish to raise complaints about the way that the workplace operates, so it may prevent people from raising issues. It is simply not the right word for what is being described.

I think that is a real challenge from the advisers’ point of view, because it just feels like an uncomfortable thing to do, and it is a difficulty from the potential claim at the individual employee's point of view, because they are having to go down a path, arguing in a direction, using terminology which does not accurately reflect the situation.

Q55               Chair: Colin, can I turn to you? Many of us in this room, in this place, have tried very hard to break down some of the stigmas and taboos surrounding the menopause. Does the reliance—the turning to the impairments and disability discrimination—hinder that process?

Colin Davidson: Absolutely. I believe it does. What we tried to get across in our written submission was that it is the wrong language to have to use. We think that it is important that menopause is not viewed as an illness or impairment, but is recognised as an important part of a lifecycle. There is potentially an issue around the idea that workplaces were designed by men for men, and they simply do not take account of this part of the lifecycle. Therefore, anything which appears to treat like for like, when the two are not necessarily alike, does not reach the most comfortable conclusion.

I agree with everything Adam was saying, but would pick up on age and sex discrimination. By trying to bring a direct claim under age or sex discrimination you have to compare yourself to a comparator. For instance, if someone had been dismissed because of their level of absence, bringing a sex discrimination claim against another male you would be saying, would a male who had an underlying health condition and a similar level of absence have been dismissed under similar circumstances? The employer might say, yes, they would have been for that level of absence, but that individual would not have been suffering from a natural part of their lifecycle. There is a difficulty of how you compare these things when it is not like for like.

I would also just like to highlight that the difficulties in bringing these legal claims are also compounded by the difficulty in bringing claims for individuals at all. We advise individuals that the cost involved in bringing a claim can be quite substantial at times, with a medium complexity case being around £10,000-£20,000. When the medium award for a sex discrimination claim is around £14,000 it can be a difficult decision to bring a claim when you are almost trying to “shoehorn” a claim into something that is an unnatural fit. Taking that risk to bring a claim when you know there is not a direct path to bring it can be a difficult decision to make.

There is, obviously, a lot of stress and uncertainty of bringing legal claims before the courts and the tribunals, and if you are also going through a difficult period of your life, that is also compounded. I say difficult, but there will be stress and anxiety from the period of your life and also from the issues you are facing at work. Having to effectively prove to a court that you are disabled or have an impairment by giving up large parts of your medical records can dissuade people from bringing claims in the first place.

It also creates quite a high hurdle to prove disability—to show that you have a long-term impairment that has a substantial effect on your ability to carry out day-to-day activities. Now, not all symptoms of menopause might have that effect, and so you have the issue of having to claim that you have this impairment and then maybe not being able to prove it on the basis of the medical evidence. I think being channelled to go down the route of proving that you have an impairment or a disability does have a chilling effect on claims.

Q56               Chair: Marian, the cases that have been brought, have they given greater clarity to employers’ duties under the Equality Act?

Marian Bloodworth: The starting point is that cases do not clarify duties per se, but the cases do have fact patterns, particularly where they are successful. Advisers, like the three of us, can draw strength and comfort from that, as both Colin and Adam have said, if you are advising a client, whether that is an employee or an employer. Some cases have been successful on the grounds that the impact of a person's menopausal symptoms were so strong that they amounted to a disability. That is helpful to employers to know that in certain cases symptoms can have that implication and then that legal obligation under the current law would kick in. Other cases have highlighted, as Adam and Colin have talked about, that there might be sex discrimination arguments. Again, that is something that employers find useful to know, and particularly for those who are maybe dealing with the menopause for the first time, or they have not had allegations raised internally.

Other cases have been successful on the basis that the individual has been able to show that they were harassed on the grounds of sex or age. Again, every time there is an example of that it is helpful to employers. It particularly helps them if they want to do some internal training because they can use the phrases and the words that happened in that particular case as an example to explain to their own staff why this sort of language is not appropriate.

Just this week there was a case reported in the papers where a claimant succeeded with a claim of victimisation, and that is one where an employer retaliated against her when she complained that he had discriminated against her on the grounds of age and sex by making inappropriate comments regarding the menopause. Again, that is a useful thing for employers and also, obviously, employees to see coming out of the case law.

One observation I would make—and I am sure we will come on to talk about this—is that there still have not been very many cases, and the ones that there have been are largely, currently, only at employment tribunal stage. Employment tribunal findings are not binding on other tribunals, although they are persuasive and—for the reasons I have said—lawyers will look at them and see whether there are any learnings from them. Employment lawyers typically rely on the cases that make it further up the appeal process to set down clearer guidance and principles and, at the moment, we have not got many appealed cases simply because there is, as I say, a low volume of claims.

Chair: Thank you for that. Can I bring in Jackie Doyle Price, please?

Q57               Jackie Doyle-Price: That leads me nicely into the question I want to ask you, Marian, which is why do you think that there have been so few claims brought?

Marian Bloodworth: That is another very good question. I think Colin touched on it a little bit. The surveys and the evidence that we looked at and drew on to put our response together suggest that there are a number of cases where people have been mistreated at work for reasons relating to the menopause. When we did our research, we chose the period of February 2017 to August 2021 and found around 44 tribunal decisions that were published in that period. Just for context, that is set against a background of 78,000, nearly 79,000 decisions that were published in the same period. Now, it might be that there are still more in the tribunal system at the moment, but that is obviously a low number and it does not seem to represent what we are hearing about the levels of treatment in the workplace.

Again, I do think—as Colin and Adam have highlighted as well—it is difficult to know whether you have got a claim if you google something and you find there is no legislation that you can easily find that tells you that because you are menopausal you may have protection. There is a general awareness about the lack of rights and how you can use existing legislation. I do think that the other factors that Colin highlighted are very pertinent. Bringing a claim is never easy. Employees do not like bringing claims necessarily, and employers obviously do not welcome them.

The other point to highlight is that in some cases you may not want to rock the boat. If your employment is precarious, you may not want to go down that route. You may be at a particular stage of your career where you know that if you leave employment you may not find another job, in which case you have financial considerations. I appreciate that some people experience menopause at a much younger age but, again, you may be on the rise of your career; you may not want to rock the boat at that point.

Funding is an issue as Colin said. Also, there are currently quite a lot of delays in the tribunal system. We have done a survey about it and we are calling for increased resourcing of tribunals simply because it does not help employees or employers when you cannot get access to timely resolution of legal disputes.

The final thing I would say is that, because this remains a sensitive and somewhat taboo subject, it may well be that where claims or grievances are raised about the menopause they are settled and people come to an accommodation with their employer and they find a way to resolve the issue without bringing a claim. There may be many more cases that we simply do not know about

Q58               Jackie Doyle-Price: Just before I come to you, Adam, 44 out of 78,000 does not feel like it properly represents the degree of discrimination. Do you think we can make any reliable estimates about how far we have menopause related discrimination?

Marian Bloodworth: I agree with you. We did not think in the working party that it represents the incidences that are happening in workplaces. I should say that, obviously, not all workplaces are bad. There are many organisations who are doing great work at the moment. It is just that, as with any issue, there will be those who are not aware of the obligations that they have to have, so I would hesitate to estimate a realistic number I am afraid. Colin and Adam may have a different view, but I genuinely think it is very difficult to properly estimate. What I think we can say is that 44 does not seem to be enough.

Q59               Jackie Doyle-Price: Adam, you referred to the fact that many of these cases are settled before they get to tribunal, and in your earlier comments you articulated the real challenges in terms of bringing forward a case in the first place, given that we are talking about an element of sex and age discrimination which does not properly reflect what we are talking about. Once a claim has been brought, what are the barriers that then face them that lead to that not going the full distance?

Adam Pavey: Sometimes if you are looking at reasonable adjustment cases for disability, there is a potential argument which is often used by employers, which is to say that they did not know about the disability, and that is a very common argument in these types of situations. That often comes about mainly because it may be that the individual has not articulated particularly clearly what the issues are. In many cases that can be an entirely valid argument.

As Colin was saying, in the actual tribunal itself you are dealing with a situation in which the individual has to prove that they have a disability— so effectively have to prove that they are having adverse effects from the menopause—and that is a personal thing to do. It can result in having to be cross-examined on that point, having to appear at preliminary hearings and to talk about private medical issues, which is often a bar.

One of the points about why we potentially have not seen so many cases which refer to the menopause I think is because historically a lot of the cases where an individual has been suffering with the menopause is they have gone to the doctor and possibly it has been diagnosed as something else and very often that can end up being a mental health diagnosis. Probably, many of the cases I dealt with years ago—which were depression, anxiety, stress, disability cases or other types of disability as well—maybe if they were being pleaded now would be based as being a menopause case. Some of that probably comes from the way in which it is diagnosed.

Again, just picking up on what I think is an important point is this issue about the bar that discourages somebody from continuing with a case in the tribunals. Often you are not even getting to that stage, and anybody that deals with settlement agreements—so advises employees on settlement agreements, which are leaving employment in return for some kind of arrangement—I know anecdotally from my own practice, that it is very common to see women of menopausal age who are leaving employment. Very often that comes about through the capability procedures, performance management where an employer is saying, “We think there might be some issues with capability, you don’t seem to be performing as you were before. Why don’t we have an off the record discussion about that?” That often leads to an agreement being entered into.

I think that is the hidden side of it really, because we do not hear about that. That is a very unfortunate situation when if you were able to reverse engineer that—and this is probably something of a different topic really—but there are lots of things that can happen when somebody is encountering difficulties with performance at work which relate to the menopause. When nothing happens, or when an employee feels that there is no understanding, nobody is listening to them, and comments are potentially being made on the more harassment side, then you stand virtually no chance of overcoming those difficulties. My experience of dealing with clients is it compounds it. Those issues of anxiety and depression are made much worse when somebody is not listened to. Of course, those problems are then taken home, they’re discussed around the kitchen table and positions become entrenched, and you reach a point where it is very difficult to improve that working relationship

Q60               Jackie Doyle-Price: Listening to what you say, it almost feels like the fact it has been taboo for so long is an issue. Frankly, a lot of women do not know what they are going to encounter until it hits them. Like you say, there is lots of misdiagnosis, but it is almost like there is unwitting collusion with employment discrimination on the part of those experiencing it, which then becomes very difficult. You are almost on a pathway to effectively constructive dismissal as much as anything else. How can we do more to empower women who, in this circumstance, are not at the best point in their lives to be a bit more cognisant of being able to represent themselves more effectively?

Adam Pavey: It is a knowledge exercise which, being positive, people are starting to become aware of. That awareness clearly needs to apply to men as well as women. I think a very fundamental point of this is that men need to understand as well that it is a little bit more than just having a hot flush from time to time. We have got to really move on from that because, well, a number of years ago that was probably the extent of my knowledge, if I am completely honest, and I do not think that would be uncommon.

At the same time, though, we have to be careful that this is always going to be a personal issue. There will be women who feel very comfortable talking about it, but there will also be women who do not feel particularly comfortable talking about it, and we have to respect them as well. As part of this education piece, we do have to ensure that we are respecting people's individual freedoms to discuss things. It has got to be done in a sensitive way.

In terms of how you communicate with an individual, occupational health is very important in this because it means that an employee is not speaking directly with their employer about their issues, but they are speaking to somebody that is trained in healthcare, and it is a much more comfortable environment in which to discuss personal problems.

Q61               Jackie Doyle-Price: Colin, do you have anything to add on the barriers that people face once they bring a claim and why so many cases are settled?

Colin Davidson: In relation to bringing a claim in the first place we face a massive problem. Whilst a lot of work has been done about education in the workplace—and society more widely—about the causes, the needs and what people are experiencing when they go through menopause, we are not quite there in terms of employers’ understanding of the needs of employees.

There is also not the level of communication where people feel comfortable approaching their employers or their colleagues to discuss these matters, believing that they will not be heard with a sympathetic ear and that requesting adjustments for any symptoms of the menopause will be seen as someone putting a burden on their employer. People do not necessarily want to approach this and they are not having conversations originally, which I think is an initial problem, but we are seeing some changes in that.

From that starting point, I think that people then see it as a difficult route to bring a claim for not being accommodated in the workplace because if they do not feel comfortable enough that there is a support structure, informally or legally, to protect their needs in the workplace, they are going to be reticent to bring a claim. Just to illustrate the costs involved, it is not a cost-shifting forum; you bear your own costs. The tribunals are under a significant amount of time pressure, and so you will get one to two years for a claim. During that time, you are either in employment, in dispute with your employer, or you are out of work seeking new work. You have other pressures on your time and your state of mind.

There are enormous societal issues that may stop someone from believing that they can bring a claim in the first place and, also, the legal difficulties in succeeding in any of these claims. If an employer sees any potential avenue for a claim then they would be wise, essentially, to try and wrap that up in a settlement agreement. To the employee—not wanting that uncertainty of whether they will be successful in a claim—it may look like an attractive option to have certainty at an early stage and not pursue this further. I can imagine that a number of claims are wrapped up quite quickly and we never hear more about them because of the uncertainty of how to proceed.

Q62               Jackie Doyle-Price: There has to be an assessment of risk on both sides, and given that there have been so few cases, there is no real certainty. If you were to compare it with, say, something like race or sex, there is enough case law for you to understand just how successful you are going to be. Do you think the absence of cases is encouraging that settlement?

Colin Davidson: I cannot imagine that there are not people suffering less favourable treatment in the workplace due to menopause. I think that the statistics we have are not accurately representative of what is happening in the workplace. Of course, if someone does not see a path to resolution then they do not really know what to do. Do they want to instruct a solicitor for advice on something that is not going to take them anywhere? Do they want to pursue it further if they have maybe not had the confidence or the willingness to pursue it in the workplace in the first place? I think there is a number of barriers and we are not seeing an accurate representation of what is happening.

Q63               Chair: Two questions around that and, Adam, you were very brave in telling us about your understanding of the menopause when you started out on this. Could you reflect on what you would have observed from tribunal judges? What is their level of understanding like?

Adam Pavey: It probably depends on the judge, but we are talking about knowledge as a society in general really. I do not think my lack of knowledge would have been uncommon; I think now it is probably a high level of knowledge. Certainly, that is going to have an impact. If you have judges that do not understand the menopause in any real detail, and that judge is being asked to make a finding about whether the symptoms that an individual has suffered amount to a disability, that causes a real problem. You could see how that could result in claims in which an individual has not been able to proceed with their claim because it has not got past that initial stage of being classed as a disability, and unless it is classed as a disability, effectively there is no claim because there is no protected characteristic to plead. I think that is an issue, but it is also relatively easily resolved. It does not take a huge amount of time to become relatively better informed about what the menopause is and to be able to see it as more than just simply relating to hot flushes.

Chair: Can I bring in Bell, please?

Q64               Bell Ribeiro-Addy: First question is to Colin, and then Adam. There is a particular concern with menopause being “shoehorned” into age, sex and disability claims. Can you explain why this would be particularly unfavourable, and the main challenges using the Equality Act to enforce employees’ rights in relation to menopause at work?

Colin Davidson: We have touched on some of this. There are specific difficulties in proving, say, direct discrimination in relation to both age and sex in that you have to rely upon a comparator. Just taking age discrimination briefly first, you have to say that someone who is necessarily younger than you has been treated more favourably than you. Now, we have also seen from some of your previous witnesses giving evidence that people experience menopause and perimenopause at different ages, so there may be some difficulty in using a comparator who is of a different age.

With sex—again I think we explained it a little bit earlier—part of the difficulty is that had a man had the same level of absences with underlying health impairment, he may well have been dismissed under a capability policy, and that may well have been found to have been fair if they went through the proper procedures. A man in that circumstance does not have the same circumstances; he does not experience the same lifecycle. He does not go through the same symptoms and the same experiences. It does not seem to cater for the experiences that women or people who are experiencing the menopause go through, and therefore the comparison does not seem fair.

I think there is a gap in the cover that does not take account of the different life experiences of men and women. For instance, under indirect discrimination employers have the opportunity to justify an absence management policy on the basis that it is to encourage a certain level of attendance at work which is necessary to comply with business needs. Now, that justification does not take into account the different life circumstances of people who go through the menopause and people who do not, and so I think that there is a gap there in addressing the issues that arise out of people experiencing the menopause.

Again, just to highlight, there does seem to be a difficulty in having to give medical records and give medical evidence—to go through some complex presentation of evidence to show that you have an impairment just because you are going through a period of your life—in order to get access to the gateway of reasonable adjustments through disability discrimination. Now, the adjustments may not necessarily always be as substantial as are required for someone who is suffering from a disability or who has an impairment. They may be less intrusive to the workplace and things like that, but you would have to go through that hurdle of showing that you are disabled just to get relatively minor adjustments in the workplace because of the period of your life that you are going through. It does seem that there is a gap in the wall in allowing fair access to the workplace for people who are suffering from menopause.

Q65               Bell Ribeiro-Addy: Thank you. Adam?

Adam Pavey: I do not have much more to add to that really other than I do not think menopause is a disability, to put it as simplistically as that.

Q66               Bell Ribeiro-Addy: Marian, a number of people that have submitted to our inquiry point out the number of limitations there are under the current law. Do you think menopause should be considered its own protected characteristic under the Equality Act? If it was, do you think there will be any potential limitations to that?

Marian Bloodworth: That is a very good question and highlighted by all the things we have just discussed. I suppose if we step back and think about the issues, right now there is a lack of clarity both for employees and employers regarding their rights and obligations in relation to the menopause, and so that impacts how they deal with each other in the workplace.

I was thinking about this and thinking that we could summarise two general concerns that people are experiencing. The first one is that there are preconceptions, assumptions, inappropriate and offensive comments, jokes and banter and labels; maybe a failure to promote or a failure to pay because somebody is perceived to be going through the menopause, and that is almost regardless of whether they have got any physical or mental symptoms.

The second thing is what we have just been discussing—and what I am sure causes just as many problems in the workplace—where there are physical and mental symptoms of menopause which literally impact your ability to work. It is not just that it makes an uncomfortable environment because people are talking about you or bantering, but you maybe cannot work that length of shift or you cannot wear that uniform or whatever it is.

A protected characteristic of menopause—if that is the route the Government wanted to go down—would deal with certainly the first situation around making it unlawful to discriminate against somebody either because they are menopausal, perimenopausal or they are postmenopausal, or because there is a perception that they are going through it. It would also have the advantage that anyone who has menopausal symptoms could be covered. That obviously then would include trans people, nonbinary people, intersex people, anyone who does not identify as a woman but who may still—I think I heard the phrase on an earlier session—have the biological plumbing that means that they are going through the menopause, and it would give them a route without, in turn, having to “shoehorn” their case into another piece of existing legislation.

You referred to limitations and, again, I suppose with any new piece of legislation there is always a challenge around how you would define it so that both an employee and an employer would be clear and would understand whether somebody was now protected and has the benefit of that protected characteristic and, therefore, the protection of the legislation. But just because it needs careful thought is not a reason not to do it and, obviously, it has been done in other parts of our Equality Act. If you think about pregnancy and maternity discrimination that specific protection was not there historically; it has been introduced specifically to ensure that there is protection for pregnant women and those who are on maternity leave.

Q67         Bell Ribeiro-Addy: To Colin again, in regard to the enforcement of the Equality Act, the burden at the moment is placed on the individual to bring forward the discrimination claim and then actually prove it. I know that our predecessor Committee raised concerns about this and offered suggestions to the Government to embed compliance and enforcement of the Equality Act into its strategies and action plans. What role do you think the Government and regulators should play in preventing discrimination that menopausal women and employees experience?

Colin Davidson: I think that the Government to some extent has a role, certainly in setting the tone, and speaking on behalf of the nation to indicate that this is an issue which should be taken seriously in the workplace and should be taken account of. It would be our view that, by creating legislation, the Government can signpost that this is something that seriously needs to be considered, needs to be taken account of, and thereafter needs to have training and education delivered in relation to it because we want to see a change in the workplace environment to accommodate those who are going through the menopause, which is an important part of the life cycle. The role of the Government in being thought leaders and setting the tone in this issue is very important.

There are obviously things that are happening through private initiatives and things like that, which are very useful in raising awareness and things, but having the Government set the tone in this is very important. That will potentially lead to other elements such as a statutory code from EHRC which would be very useful. The EHRC codes are extremely useful in providing work scenarios so that workplaces—individuals and employers—can work through scenarios and understand much more clearly what their rights and responsibilities are. By raising awareness and by providing adequate training, and potentially by incorporating legislation, it is not that we want to see more claims; we want to see less claims. We want employers and employees to understand what their rights are and be having these conversations so that these issues are taken account of in the workplace so that we do not get to the stage of individuals leaving the workplace at an important time in their economic life, to the detriment of themselves and to the employer.

Losing an employee after all the training and education that they have had, after all the time put in, in a period when they may actually be at a very skilled point in their career and may be taking on senior roles then leaving the workplace, that employer then has a brain drain, the economy has a brain drain, and that individual is disengaged from the workplace. Guidance can establish benchmarks of what is acceptable and good employers will always follow good practice, but bad employers will not necessarily. I think the Government setting the tone and introducing legislation would be extremely helpful to employers, employees and the economy at large.

Q68         Bell Ribeiro-Addy: Just finally, to all of you, a question about tribunals. A lot of the responses received have said there was an inconsistency with how claims of menopause were dealt with at tribunals. The Chair touched on it earlier in terms of how the judges might behave, but could you explain maybe what some of those inconsistencies are, and how you think we might be able to avoid them in future? We will start with Adam.

Adam Pavey: I think it is quite natural to some extent that there are going to be inconsistencies when we have this kind of almost confusion, to some extent, with terminology. Again, probably one of the reasons why, if you looked forensically at different cases and you looked at an individual with a particular list of symptoms and another individual with the same list of symptoms, you may find that there are differences in how a judge may interpret that and may come to a different conclusion in terms of issues such as whether it amounts to a disability or not. That is going to be caused by a different level of knowledge that the judge has about the menopause and the medical effects.

In terms of how that is potentially resolved, it has got to be clarity in terms of the legislation and the pathways in which menopause discrimination is articulated within the law, and training to enable a more consistent approach to how the menopause is perceived. There is a slight parallel with mental health discrimination. From a practitioner point of view,when I started practicing there were not as many mental health discrimination cases as are seen now. Certainly back then judges were less familiar with those types of issues, those types of symptoms, than they are now and that is because of increased knowledge. I think potential changes to legislation and more training will naturally lead to more consistent findings.

Marian Bloodworth: I would agree with that. I think when any new law comes in—if there were a new law—judges need to get up to speed and they would refer to the guidance and the codes of practice that we have talked about. Right now that is not the position we are in, so they do what they can with what they have, and often bring their own levels of experience or otherwise to matters. Indeed, one of the tribunal cases that was successful was where a manager relied on his wife's experience of the menopause to govern how he treated his employee, who was obviously experiencing it in a different way. That is a classic example of how bringing your own personal knowledge to something is not enough, and you need to think more broadly about it.

Another thing that I think you could do, even without a change in the law, is training for the judiciary. I am aware that, for example, they have had training on diversity and inclusion more generally and that has been relevant to help assist in management of cases where, as is more frequently seen these days, individuals complain about things like microaggressions and things like that—low levels of unfavourable treatment, which over a period of time can accumulate to something really disruptive and unpleasant. I think there has generally been an increase in the levels of awareness and education around that, and it may well be that something similar needs to be put into place with education around the menopause.

Colin Davidson: I agree with what both Marian and Adam have said so far. I think the only thing to add is that difficulty with the tribunal decisions now is—as obviously was alluded to earlier—they are mostly first instance decisions and so they do not have the benefit of being appeal decisions, which are set precedents and have to be followed. Also, at first instance as well, it is very facts-specific, and so a slightly different set of facts can lead to a different outcome. What we are seeing is cases which are trying to be shoehorned into different types of claims, which do not necessarily naturally fit in those claims, and they are done in different ways and under different factual circumstances. It is only natural that it appears that they have different outcomes to some degree.

Bell Ribeiro Addy: Thank you, panel. That is all from me, Chair.

Q69              Dame Caroline Dinenage: Thank you very much to all of you—really interesting. I am just wondering about some of the disadvantages of things like potentially creating a new protected characteristic or requesting that there are reasonable adjustments made. To what extent do you think that there are disadvantages from the point of view of employers, particularly SMEs, who may look at a woman approaching that age—I probably should declare an interest at that point—and say, “This is just too much for me to take”? What are the unforeseen consequences here of either legislation changes or imposing more guidelines or rules and regulations? Starting with Adam.

Adam Pavey: It certainly has to be considered from that point of view; we do not want to throw out the baby with the bathwater with this. You could raise a similar argument with lots of other types of legal protection that employees have in terms of a potential for employers to do just that and to maybe make decisions about who they employ based upon their view of risk, essentially, to their business. Running in parallel with that and the way that that is potentially overcome—and I feel like I keep repeating this—is this question about knowledge. If you have an employer that thinks that menopause is this completely disastrous thing for a woman's career, it may be the case that they then take that view. If you have a potential employer that knows more about the menopause and understands actually that if you undertake certain workplace adjustments and you treat that person in a different way then those things potentially will not be an issue, then it kind of overcomes that, to some extent.

Something that Colin said which I would like to emphasise is that we are not going to measure the success of all of this by seeing loads more menopause cases in the tribunal. That is not the measure of success for this. The measure of success for this is the extent to which employers recognise what an incredibly negative thing it is for a business to lose somebody of that age in their career, who is no longer going to be working in the organisation, that brings a lot of skills that come with being of that age. That is very, very important but inevitably those are considerations. Those have always been considerations when there has ever been any kind of change to protected characteristics, and the law relating to discrimination. If it is going to happen, then it needs to be accompanied very directly with that positive message.

Q70              Dame Caroline Dinenage: I was very mindful while looking at the list of some of the countries in the world where they have some of the lowest gender pay gaps, it tended to be the ones which had the least number of women in employment. Sometimes you have to be really, really careful of the unintended consequences of things. I am just wondering, Marian, what are your thoughts on what would be the potential downsides we need to be aware of, for example, in introducing a new protected characteristic?

Marian Bloodworth: I suspect there will be some employers who think that this is the green light for individual employees to raise claims that perhaps are not necessarily meritorious. They will say that they fulfil the protected characteristic and therefore that what has happened to them is discrimination, but that is a risk that is existent already with the Equality Act and the protections that we already have. To prove their claims an individual needs to show that it is because of their characteristic—or for reasons related to their characteristic—that the thing they are complaining about happened, and that is not always the case, so they will not always succeed in making their claim. That is always a concern, and it almost does not matter what size your organisation is; employers will have a concern at potential abuse, but as Adam said, you have to set this against the greater good.

If this protection means that everybody understands their obligations towards each other, behaves in an appropriate way, and that stems a number of women leaving the workforce that an employer does not really want to see leave, then the benefits outweigh any of those kinds of risks. I am sure this is the sort of thing that would be the subject of any consultation, if the Government did decide it wanted to go down this route. It would be an opportunity for workforces to express their concerns or reservations about this kind of thing, but exactly the same argument could have been raised about the introduction of the pregnancy and maternity related protection—

Q71         Dame Caroline Dinenage: Except for, Marian, that you know when you are pregnant—you take a test and you either are or you are not. But because of the way the menopause is—perimenopause can go on for a decade, potentially—quite often it takes multiple visits to the GP before anybody tells you that that could be what is going on, so at what point then does it kick in? How would you legislate for that?

Marian Bloodworth: It would come down to what the definition of menopause was as the protected characteristic that was introduced as part of the Equality Act, and whether it was felt appropriate that, yes, there had to be some kind of evidential threshold for an individual to meet in order to properly qualify for that protected characteristic. That is something that would be open to the Government to introduce.

Q72         Dame Caroline Dinenage: Yes, quite tricky. Does anyone else have any thoughts on that particular part of the conundrum? No, okay.

My final question would be to Colin, because I do not want you to think for one second that you are off the hook. What would introducing section 14 of the Equality Act do in terms of additional protection?

Colin Davidson: I think introducing section 14 would certainly be very useful. Even outside of the discussion we are having about menopause currently, I think introducing section 14 is a good idea. We had evidence from some of your previous witnesses—I think it was Karen Arthur who at one point was describing some of the dual discrimination that is suffered in the workplace. Being a black woman or being an older woman or being a black woman who also is going through menopause, these are dual characteristics that can compound each other. The treatment that she described at one point of being potentially in a workplace having no underlying racism and then therefore when you raise other issues which may be in relation to your sex—or to menopause should that be brought in—these are compounded by each other. I think certainly that section 14 would be useful in assisting people in bringing those claims. It would be useful in the circumstance of if we had a separate protected characteristic of menopause; I also think it would be useful just more generally. It is certainly something that should be considered to be implemented.

Q73              Philip Davies: Can I follow up Caroline's questions about how employers might feel nervous about taking people on? I just wondered how you would advise a company who did take somebody on how they should treat an employee who said, “I can't come into work today because I have had difficulty sleeping because of the menopause,” or whatever it might be. Would you advise them that, in order to avoid a claim if this was a protected characteristic, that they should always just go along with it? I suspect it is that that would cause the nervousness amongst employers—that they might just think, “Well, I’ve got to just go along with this, because if I don’t go along with anything I’m going to be taken to a tribunal and I’m going to lose.” How would you advise an employer in those situations as to what they should do if, maybe day in, day out, somebody was saying, “I can’t come in to work today,” because of their menopausal symptoms? Adam?

Adam Pavey: I think the fact that there is a protected characteristic does not give an employee carte blanche to act in any way at all. There is still going to be a protection, as there is currently for disability discrimination. It is not the case that an employer simply has to agree with everything that an employee who has a particular protected characteristic does. I do not think it necessarily works in that way, but from a practical point of view, you would want to be communicating with that individual. If the individual was not coming into work you would want to be finding out more about those reasons. Again, as I said before, it is not really appropriate for employers to be making medical decisions about their own staff. If there was any uncertainty you would be looking at using occupational health and particular trained practitioners that would be able to look at the individual and be able to give a view as to what they were suffering from. I do not think it means that an employee can pretty much behave in any way if they claim that; there is still protection in those circumstances.

Q74              Philip Davies: Do you accept that there might be a chilling effect, because employers do not want to get into all of that, do they? It is time consuming and it is taking time away from the business and whatever. Coming back to Caroline's point, because of that hassle factor and the chilling effect it might have where they do not want to do something that might be seen further down as being discriminatory, they just think, “I’m not going to take this person on.” Do you accept that the chances of that are potentially quite high?

Adam Pavey: I am sure there will be employers that are like that. I would have thought they are certainly in the minority. Again, I would probably draw a parallel to mental health discrimination as well. When that became something that was talked about a lot more in the workplace, when mental health became something that was put under the spotlight, there was that situation. Then, again, as knowledge developed and people understood those conditions in better detail, it became less of a stigma attached to it. It is certainly not something that I have witnessed in recent years.

Q75         Philip Davies: The NHS refers to the male menopause, which includes symptoms such as insomnia, poor concentration, mood swings, short-term memory issues. Would any menopause protected characteristic that is made to accommodate women experiencing adverse menopausal symptoms in the workplace also apply to men? 

Adam Pavey: It would depend upon the definition.

Dame Caroline Dinenage: Buying a new motorbike and wearing double denim.

Q76         Philip Davies: Should it? What would your view be? Does anybody have an opinion about that?

Colin Davidson: I think that is something that would have to be consulted on. We would have to get medical evidence on this and would need further consultation. It is certainly not something that I have looked into and would be capable of answering today.

Marian Bloodworth: I would agree. One thing you would need to know about is the prevalence of that and the impact of the andropause on men in the workplace. Obviously, what we are focusing on here is the impact on women and those who biologically remain women. I can see that if you go down that route, it would be a protected characteristic that was defined by reference to a, I’m guessing, hormonal change at a particular stage of life albeit it opens up the questions. One thing we want to make sure we do, if we talk about the menopause, is that we capture those who experience this at a very young age, as one of the earlier witnesses has already pointed out. There is a challenge around the definition—I do not think any of us are saying there is not—but that does not mean that an appropriate definition could not be reached.

Q77         Chair: Can I just ask any of the panel—either none of you or all of you can try and answer this one—how would you frame a duty to make reasonable adjustments for menopausal employees in such a way that you can mitigate some of the concerns that both Caroline and Philip have raised? Does anyone wish to answer that question?

Dame Caroline Dinenage: Good question.

Marian Bloodworth: I am happy to start. Obviously the Government might introduce a protected characteristic, but it does not follow that you have to have a duty to make adjustments of some sort. It would help address a lot of the things that we have talked about in terms of the physical and the mental symptoms. It would potentially be helpful, because right now there is not the clarity around it. You would need to define when that obligation arose and, without getting too technical, you could have circumstances in which the duty arose that are more specific than just the general definition of whatever the Government comes up with, if it wanted to go down this route, for a protected characteristic. You would need to work out when it would apply and in what sort of circumstances, and what the obligation would look like. Again, as I said earlier, with any new piece of legislation, you would want guidance as to steps that could be taken and some examples of what might be considered an appropriate adjustment. You would need some threshold criteria.

Q78         Chair: Does anybody else want to add anything to that? Colin.

Colin Davidson: We do not profess to have the answer on this at all and I think that this would need serious consultation. The DLA have done some thinking on it and I can set out some of our thoughts which hopefully will be helpful. The characteristic, as far as we are concerned, covers menopause and perimenopause. As we have alluded to, it would cover those who experience menopause but who do not identify as women. The individual would be required to establish, at the relevant time, that they were experiencing menopause or perimenopause and the manner to do that could be a GP’s note or medical evidence. It is our view, however, that the individual should also be open to showing—in the way that a disability claim can be proven—evidence of their symptoms which clearly illustrate that they are going through the menopause or perimenopause.

We do not think the threshold should be quite as high as in a disability claim where quite complex medical evidence is required. The characteristic would be modelled somewhat on a section 18 claim, which is the pregnancy discrimination claim, which is to show that someone has been treated unfavourably as a result of menopause, rather than less favourably. Less favourably is the test that comes up under direct discrimination and that raises the issues that I explained earlier in relation to having a comparator, which can be very problematic in relation to how someone would treat a male or a younger employee. Again, coming back to the issue of looking at the mischief we are trying to solve here, basically, the law, as we see it, does not currently cover this part of an individual's lifecycle, so if they are treated unfavourably because they are going through this part of their lifecycle, then that would effectively amount to a barrier to them contributing fully to the workplace and would be unfavourable treatment.

From an employer’s point of view, there would have to be a state of knowledge. The employer would have to know that the individual was going through menopause at this stage, so someone who had no knowledge whatsoever obviously would be unlikely to have discriminated. In the same way, in discrimination claims there can be imputed knowledge on the basis that someone is clearly going through the symptoms of menopause. That would have to be accompanied by guidance from the EHRC and a statutory code which would provide examples for employers as to what to do in these situations. Any type of change to the legislation would require guidance and training that was given to employers so that they could understand their responsibilities and employees could understand their rights.